Ford cuts, Goldstein column, revisited | Scott Reid

It was with dismay bordering on disbelief that I read Sam Goldstein’s article in The Lawyer’s Daily regarding crime victim compensation.

Mr. Goldstein’s comments regarding legal aid remind me of comments made by people with no grounding in criminal law or the policies and procedures animating that particular field of law.

I won’t comment on his comments related to the headline of the article. His comments regarding Legal Aid Ontario (LAO) and the cuts made by the Ford government, however, cannot go unanswered. Emboldened by his recent election as a bencher of the Law Society of Ontario (LSO), it appears that Mr. Goldstein now sees dismantling the LAO certificate system as his new calling.

It is true, as Mr. Goldstein says, that immigration is a federal matter. Unfortunately for Mr. Goldstein, it is also true that criminal law is a federal matter. And it is also a problem for Mr. Goldstein that the administration of justice is by and large (although not exclusively) a provincial matter. It is difficult to see any reasoned distinction for eliminating one and not the other, given that both areas of law are federal jurisdiction.

Furthermore, Mr. Goldstein is simply wrong as a matter of fact to suggest that the LAO cuts will not “ineluctably” mean fewer people will receive legal advice. His use of that phrase, “legal advice” is of particular note. People charged with crimes do not simply need “legal advice.” They need legal representation. As a practising criminal lawyer, I would have thought that Mr. Goldstein would be attuned to the not-so-nuanced difference between the two.

People arrested are entitled to “legal advice” before speaking to the police. But once they have been charged, have to appear in court, set a trial and attempt to fend off the unlimited resources of the state which is seeking to convict and sentence the person to imprisonment, that person needs more than “advice.” That person needs a lawyer by their side in court to guide them and hold the prosecutor to the legal burden of proof — in other words, to defend them. Legal advice doesn’t cut it. The person needs legal representation.

And it is abundantly clear that fewer people will have “legal representation” at trial as a direct result of the Ford cuts. There is simply no away around the math. It is frankly insulting and demonstrates a fundamental inability to grasp basic concepts surrounding the issuance of LAO certificates to suggest that LAO is “not for lawyers to earn a guaranteed income.” No one in the criminal defence bar is suggesting that LAO should guarantee such an income. All the defence bar wants is for sufficient funding of certificates that everyone who needs a lawyer can retain a lawyer with enough hours to pay the lawyer for the work that needs to be done. Mr. Goldstein’s ignorance of such a basic premise suggests that he perhaps has not accepted a legal aid certificate in some time.

Consider this common scenario. A low-income wage earner makes perhaps $20,000 a year. That amount puts that person above the LAO cutoff for a certificate (unless it’s for a domestic abuse related file). However, from that amount, the person has to pay rent ($1,000 a month, not in Toronto, but let’s use that figure), food, transportation, taxes, utilities, phone bill. Rent alone would eat up about 60 per cent of the annual income.

Where, exactly, does Mr. Goldstein expect this person to come up with money with which to retain counsel?

Frankly, it is difficult, if not impossible, for many middle-class wage earners to pay for legal representation. The LAO cutoffs are already too low. They are about to drop even lower, so that fewer people will obtain representation, in order for LAO to allocate the few resources they do have.

Perhaps most incomprehensible is Mr. Goldstein’s suggestion for LAO to implement a public defender model instead of a certificate model. Allow me to be blunt — Mr. Goldstein doesn’t know what he is talking about if he is suggesting a public defender system. Not that it hasn’t been suggested before by others (usually those who don’t accept LAO certificates in the first place, but that’s another issue).

Anyone who thinks a public defender system is a good model for Ontario’s provision of legal services hasn’t been paying attention to what’s been happening south of the border for the past, oh, 40 years or so.

Public defender systems are chronically starved for funds. The public defenders lack resources for basic preparation, never mind experts, defence witnesses and investigators. They are frequently overworked due to the offices being short staffed. They do their best with the limitations they face, but make no mistake, they simply cannot give the amount of attention to each file that they require. Rather than implementing efficiencies, a public defender model will overwhelm those lawyers working in that system. Implementing a PD system will lead to an increase in wrongful convictions.

Further, such a system still requires some sort of financial ceiling to determine who is eligible to receive public defender assistance, so it is not clear to me how Mr. Goldstein thinks that such a model will save any funds anyway.

Perhaps most disconcerting is that Mr. Goldstein seems to forget that in Canada, the courts have recognized the right to counsel “of choice.” A public defender model eliminates the right to counsel of choice. A defendant would have the right to counsel of choice only if he or she could afford to pay for one. Otherwise, a defendant would only have a right to have counsel of the government’s choice.

Let us all hope that as a bencher, Mr. Goldstein gives a bit more thought and analysis to the matters brought before the law society than he gave to the ideas he put forth in his article.

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